In a 7-2 opinion by Justice Douglas, the Supreme Court held that the Constitution contains a right to contraception in marriage. The Court does not ground this right in any one particular provision of the Constitution, but argues that certain guarantees in the Bill of Rights have “penumbras” formed by “emanations” from those guarantees that “help give them life and substance.” These guarantees, found in the First Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, and the Ninth Amendment, create a “zone of privacy,” and this zone protects the right to privacy in the marriage relationship.
This case is activist because the judges relied upon notions of living constitutionalism to create a “right” not found anywhere in the text of Constitution or our nation’s laws and traditions, thus abandoning their duty to interpret the Constitution and instead endeavoring to amend it. The judges acted as legislators, weighing policy considerations above the requirements of law. The language in the opinion reveals their awareness of the bounds they are crossing: “We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.” In other words, the judges know that the Court is not to have a legislative role in ordinary circumstances, but they make an exception in this case because the judges happen to believe that the “intimate relation of husband and wife” is of such importance that it permits them to abrogate their duty to merely interpret the Constitution.
The Court’s reliance on “penumbras” and “emanations” is further evidence of this abrogation; the judges were aware that nothing in the Constitution expressly protects the right they sought to create, so they created a constitutional doctrine so tenuous that it only serves to reveal all too plainly their desperation to reach a desired end.
In his dissent, Justice Potter Stewart explains the inappropriate weight that his colleagues gave to personal preference in their majority opinion. Justice Stewart explains that though he thinks the Connecticut law forbidding contraceptives is “uncommonly silly,” and that he opposes it on practical, philosophical, and policy levels, such personal opinions are irrelevant to his duties as a judge. He aptly states, “[w]e are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.”